Crisis on Bear Island
By Brian Back POSTED: FEB. 7, 2009
REVISED: MAR. 3, 2009
Last summer, the Temagami First Nation re-elected, after a long absence, its rock-star chief. Gary Potts is a near-mythical figure who shaped a beaten-down community into a proud, political force.
He became chief of the reserve on Bear Island, Lake Temagami in 1972 and served for over 20 years. In 1973, he launched its land claim with a precedent-setting caution that froze land sales and mining development on 10,000 square kilometers — an area almost twice the size of Prince Edward Island. For the province of Ontario, which couldn't shake off the caution, it was as if a moose had walked onto the 401, set off a chain of rear-enders and calmly walked off the other side.
Expectations soared on the island for the first time after a century of mistreatment and injustice. The legal battle captured national attention and went to the Supreme Court. The 1991 ruling brought a small victory that forced Ontario into negotiations. But it fell far short of expectations and was viewed by many as a catastrophe. Potts leadership shattered amid acrimony and bitterness.
After a decade of fitful healing, that acrimony: it’s back.
Potts' Election Squeaker
The June 12 election of Chief and Council is a tie and Potts triumphs over incumbent Chief Alex Paul on the electoral officer’s flip of a coin. The announcement of the results at the band office transforms Potts from everyday stoic to ill-fitting euphoric.
Peter McKenzie (Potts' nephew) captures the second chief’s position by a single vote. With the election this tight, appeals are inevitable and four roll in. They charge voter registration error, improper ballot withholding, violation of constitutional rules and conflict of interest. The complaints are aimed at the electoral officer’s actions, particularly the withholding of ballots to voters.
Electoral Officer Virginia Paul (McKenzie's partner and sister to Alex Paul) had declared that several voters weren’t residents of n’Daki Menan (their ancestral homeland). A residency requirement is set by the constitution. At least two other voters, approved by Paul, may not have been residents.
The last election appeal, linked to the June 2006 election, went smoothly. Voters filed their objections with the electoral officer who forwarded them to the Council of Elders. The elders ordered both the removal of two elected councillors and a new election to replace them.
This time the electoral officer not only does not forward the appeals, but rejects them. She has ruled on her own actions and it shocks people.
“I think the idea that the electoral officer can make a final decision, on an appeal of her decision, does not follow natural justice,” says Doug McKenzie (Peter’s cousin), former Teme-Augama Anishnabai chief. “You appeal it to another body.”
The Assembly Speaks
“After the appeals were denied the community wanted to find a way to fix this problem,” Councillor Roxane Ayotte says. She is the most popular member of Council by votes, topping the chief by a wide margin.
On July 29 a petition signed by over 50 per cent of eligible voters (96 of 189) is presented to the Chief and Council. It requests a community meeting be organized for August 2 so a resolution can come to the floor calling for a new election of chief and second chief.
The ancient custom of a band meeting (community assembly) is the 653-member nation's equivalent of an all-in-one parliament and court. It has existed for as long as anyone knows. When the constitution was written in 1978, the band meeting was enshrined.
The Council rejects the petition and refuses to organize the meeting. Potts states in a letter to the community that the electoral officer constitutionally has "sole authority to deny or accept an appeal.” This is seen to undermine the authority of the elders’ council (which Chief and Council appoints), reverse the precedent of 2006, and backhandedly deny the legitimacy of the community assembly. Potts steps into the path of a speeding Stanley.
The community ignores Council, assembles on August 2 in the community centre, and passes the resolution. However, 51 per cent of eligible voters are not present. Without a majority the constitution calls for a second meeting to repeat the vote. Second meetings are common. At these, a simple majority of attendees suffices for the final passage of the resolution into tribal law.
Potts sends out a letter to the community two days before the second meeting. He declares both meetings to be illegitimate.
Attendance is higher at the second assembly and the resolution passes. The simple majority is also a majority of eligible voters. The election is scheduled during the next assembly, which had already been announced by Chief and Council for September 20 to conduct other business.
In more letters to the community, Council continues to call the meetings illegitimate and declares that any new election has no force. If there was any doubt where Council stood before its attack on the right of assembly, it is gone. The community is now split between support for Council, which points to the constitution as justification, and support for a new election.
The only member of the June 12 Council to attend the assemblies is Ayotte. In the first week of September, she resigns. “The assembly is the heart of leadership, a custom coming from the roots of the nation. It’s the resolution to all problems, trumping all, even the constitution.”
Potts does not return calls for this story.
“Council has been trying to protect the integrity of our constitution and it's been accused of not following it,” says Peter McKenzie (though second chief, he expresses his own opinion, not that of Council). “I don’t even know if our own members can fully understand all the dynamics of what’s going on here.”
An assembly is a model of direct democracy where anyone can speak. Agenda items and resolutions can be presented by any member, and both are voted on by the assembly. Meetings can be called by Council, members, petition or the assembly. This is tribal custom (customary law). What common law is to Canada, tribal custom is to a First Nation. The TFN practices its own form of tribal custom.
The constitution elevates the assembly into the top governing body by requiring its approval for all major decisions of Council, making it the arbiter of impasses within Council and granting it the power to impeach.
Within Council the chief has extraordinary power. There are, in effect, two votes: one for the chief, and one for the rest of the council. A majority of the rest determines its vote. This gives the chief a de facto veto, but the power is that of a prince, not a king.
Before 2002, the chief ruled more as a king. The rest of council voted individually so the chief only needed a single councillor’s vote to carry the body. In Potts’ previous term, he held this stronger hand. In the aftermath of Chief Raymond Katt’s impeachment, the constitution was amended.
Often, it is the chief who chairs the assembly, but this time Potts hires an independent facilitator for the September meeting.
Council members object to what they see as interference in their meeting — over which they believe they hold constitutional sway — as participants amend the agenda to include the election resolutions, which dominate discussion.
The election is held next door to the assembly on September 20. Ayotte (Potts’ niece) and John McKenzie (Peter’s cousin) are elected chief and second chief, respectively. Jamie Saville, John Turner, Steve Laronde and Arnold Paul (Virginia’s brother) are elected councillors.
None of the June 12 winners ran, except Ayotte. The polarization remains, and weighs heavily on the community. Equally so, on the winners of this election. On September 21, John Turner and Wayne Potts (Gary’s brother) believe that a little more time could deliver community reconciliation through a new election in which both the June 12 and September 20 councils are on the ballot. Their resolution for a new election in October is carried. It needs to go to a second assembly.
“Unfortunately, Gary Potts, just over two weeks later, moved to unilaterally cancel the constitutionally required second vote — that broke our laws again, never been done before — and decided to illegally use TFN funds to launch the court action against some band members,” says John Turner, one of those targeted.
Potts’ letter of October 7 to the membership states: “The validity of our electoral process has been questioned since June 12, 2008; a Review [sic] by an impartial Judicial Process [sic] is required to resolve the question.”
This is nothing short of ten on the Richter scale.
“That’s a slap in the face to the community and undermines everything [Gary’s] been talking about since 1970: self-government," Doug McKenzie says. "We existed for thousands of years here, and now, all of a sudden, we have to go to the colonial court to make proper decisions for us?”
The court papers name as respondents eight individuals: those who won the September 20 election, and those who offered resolutions for new elections. They must hire legal defence out of their own pockets and pay their own expenses to the hearings in Ottawa. Ayotte calls it a “way of disciplining people” exercising their democratic rights.
Why turn on your own while besieged from the outside? The court might fix a clause or two in the constitution, but why bother when it is widely viewed as so flawed it needs a major overhaul or replacement?
“These claims have offended many, as they are clearly presented as a way to avoid having to be accountable to TFN members during their term of office,” Turner says.
Total legal costs to both the respondents and the band may exceed $100,000. The band has deep pockets, but not its members. Legal justice too often follows the money that hires the best lawyers, funds the most complete research, and rewards staying power. Will justice prevail when the resources are so imbalanced?
The irony here is that Council claims to be defending the constitution by going to court. The constitution states Council requires assembly approval. It doesn’t have it.
At the October 11 second assembly, which the June 12 Council does not attend, the resolution for the third election passes. Election notices are posted and Potts is caught in a YouTube video allegedly tearing them down.
Anger grows. The pro-election group lights the "community campfire" and sets up a protest camp around it outside the band office on October 14. There are no protests in support of the June 12 Council.
In fact, though Council knew of every community meeting, as public notices were issued, it could have organized opposition and fought the pro-election resolutions. It did not. Every vote overwhelmingly passed in support of new elections.
The same lineup from the second election wins the October 26 election with one exception: Turner does not run and Marty Pridham is the fourth councillor. Ayotte wins 89 votes, considerably more than the 52 that Potts garnered on June 12.
The next day, the October 26 Council enters the band office early and sends out paperwork to inform the bank and Department of Indian and Northern Affairs Canada of the election results. Expecting opposition, elders temporarily block entry to the June 12 Council.
Police are present but only, it appears, to prevent violence. Potts requests they allow him entry. The police decline. A short time later the elders leave.
INAC and the banks, informed of the pending judicial review, choose to wait for a decision before transferring authority to new officers. Senior band staff do not recognize the new council. They change locks and passwords, even on the photocopier.
Without financial power and the support of senior staff, the October 26 Council must meet in the public area of the band office. The only evidence of a new council is when Ayotte answers the phone: “Chief Roxane Ayotte.”
Chief and Council waste no time in trying to kill the protest by seeking an injunction to stop further organizing, protests and “rogue elections,” as Potts calls them in his affidavit. The defendants go to the Ottawa hearing on November 13 to defend themselves.
The band funds the travel expenses of its officials, those elected on June 12. The rules of Council also provide a per diem for attendance at a business meeting.
Council sings the blues but the judge decides it has nothing to be blue about: “no irreparable harm” to the band. Case dismissed.
The question not decided: What about irreparable harm to the respondents?
A Line in the Forest
The court case has widened and hardened the chasm between Council and the community. A line in the forest has been drawn.
“It sounds like what the colonial government tried to do to us,” Ayotte says. “It’s taking the authority of the people away from them.”
Unlike the tribal crisis of the early 1990s, this one is not between families, but through families: sister against brother, parent against child.
Ayotte operates the island’s sole store and the post office. Has this hurt business? “I know of two people who stopped coming.” Potts, her uncle, is one. “He sends somebody to get his mail and buy his cigarettes. I think I would have been in a worse position if I was a Gary supporter.”
The island could be called a one-industry town. About half the work force is employed by the band and people fear for their jobs. Potts sent out a letter on August 7 that was widely interpreted as a gag order on staff. Though he retracted this in a letter the next day, it has an effect. “People are afraid to speak the truth,” Ayotte says.
The pro-electionists have out-organized the June 12 Council at every turn. They have a massive presence on the community’s forum at www.ndakimenan.ca, dominate every assembly, produce YouTube videos, hold a month-long protest outside the band office, document their case publicly, and run regular fundraising events for court costs.
Potts is the target of most anger. Although the community lays blame on the second chief and the councillors, it sees them as supporting the chief. The bucks stops with him.
This is a nation that has been through endless challenges and hardship: loss of land in 1850, banned from cutting timber to build homes in 1910, the political crisis of 1991 to 1995, near breakup in 1993, and two recent impeachments of chiefs.
“I find this unnecessary court action disturbing because it perpetuates the perception by mainstream Canadian society that First Nations cannot manage themselves," Turner says. "This whole issue was resolved with a community vote. We have never before seen a council not accept the clear will of the people.”
If Potts and Council had supported a new election, Potts might have won, giving him a clear mandate to govern. If he had lost, he could have run again in three years, stronger for taking the democratic high road. His renowned political prowess is missing in action.
The United States is one of the world’s most sophisticated democracies and it still had to decide a presidential election in court. Democracy is a long-term construction project.
The TFN's current dilemma won’t be resolved until after the judicial review — not likely before May — or Council withdraws its action.
Then, the TFN will clean up constitutional flaws that contributed to all this. There is already a draft that has gone through ten revisions.
The nation will be resuscitated. It will be the stronger for it.
Potts may win in court. But he has lost the people.